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Power Couples: Lawmakers, Lobbyists, and the State of Their Unions

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Power Couples: Lawmakers, Lobbyists, and the State of Their Unions Washington University Journal of Law & Policy Volume 24 Following Marriage 2007 Power Couples: Lawmakers, Lobbyists, and the State of Their Unions Susan Frelich Appleton Washington University School of Law Robyn M. Rimmer Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Family Law Commons, and the Law and Society Commons Recommended Citation Susan Frelich Appleton and Robyn M. Rimmer, Power Couples: Lawmakers, Lobbyists, and the State of Their Unions, 24 WASH. U. J. L. & POL’Y 207 (2007), https://openscholarship.wustl.edu/law_journal_law_policy/vol24/iss1/9 This Essay is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Open Scholarship https://openscholarship.wustl.edu/law_journal_law_policy/vol24/iss1/9 Power Couples: Lawmakers, Lobbyists, and the State of Their Unions Susan Frelich Appleton* Robyn M. Rimmer** In recent years Congress has made marriage a staple of its legislative menu, introducing constitutional amendments to “protect marriage,”1 deploying public funds to encourage “healthy marriage,”2 and seeking tax reform to abolish forever the so-called “marriage penalty.”3 Yet, for many years, Congress’s well-publicized preoccupation with marriage law and policy has revealed notable gaps. First, Congress has ignored a phenomenon blossoming in its own backyard, the growing number of lawmakers married to * Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University. ** Washington University School of Law, J.D.; former Senate legislative fellow and political consultant. The authors gratefully acknowledge helpful discussions with or thoughtful comments on earlier drafts by Cheryl Block, June Carbone, Kathleen Clark, Torey Cummings, Sylvia de Leon, Rebecca Hollander-Blumoff, Craig Holman, Roberta Reisinger, Laura Rosenbury, participants in the Washington University School of Law faculty workshop series, and participants at the “Following Marriage” session at the 2006 Law & Society annual meeting—even if this essay fails to reflect all of their valuable suggestions. For research assistance, we thank Lauren Taub for her considerable efforts and Melanie Edwards for her contribution at the start of this project. 1. See H.R.J. Res. 88, 109th Cong. (2006) (proposed federal constitutional amendment); S.J. Res. 1, 109th Cong. (2005). Twenty-seven states have adopted constitutional amendments banning same-sex marriage. See CHRISTINE VESTAL, SAME-SEX MARRIAGE RIPE FOR DECISION IN 3 COURTS 5 (2007), http://www.stateline.org/live/digitalAssets/7990_Same-sex_marriage. pdf. 2. See Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7103, 120 Stat. 138 (to be codified at 42 U.S.C. § 603). This 2006 reauthorization of welfare reform legislation includes $100 million annually for state initiatives to promote “healthy marriages,” specifically pro- marriage programs. Id.; see generally Vivian Hamilton, Mistaking Marriage for Social Policy, 11 VA. J. SOC. POL’Y & L. 307 (2004); Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform’s Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647 (2005). 3. See H.R. 3384, 109th Cong. (2005); S. 78, 109th Cong. (2005) (proposals “to make permanent marriage penalty relief”). 207 Washington University Open Scholarship p 207 Appleton Rimmer book pages.doc 10/2/2007 208 Journal of Law & Policy [Vol. 24:207 lobbyists—unions that we call “power couples” for short.4 This first gap discloses a second and related omission: lawmakers have avoided looking behind the slogans to grapple with the tensions that pervade contemporary understandings of marriage—tensions created by the challenge of reconciling concepts of spousal individuality, marital unity, and gender equality in a modern incarnation of a very traditional institution.5 With action at the start of the 110th Congress, however, the Senate has taken a small step into the breach by proposing significant restrictions on spouses in legislator-lobbyist marriages. Responding to widespread news of government corruption, the Senate passed comprehensive ethics reform, including a previously little-noted amendment by Senator David Vitter (R-LA)6 that would prohibit all senators from having official contact with any senator’s spouse who is a registered lobbyist or who is employed or retained by a registered lobbyist.7 As of this writing, uncertainties about whether the measure will become law remain, given the much more modest regulation of power couples adopted by the House of Representatives in its new House Rules8 and its subsequently adopted bill.9 Indeed, even 4. We borrow the phrase “power couples” from colloquial discourse to refer specifically to legislator-lobbyist marriages. Of course, there are other types of “power couples” that evoke similar, yet distinct, questions. For example, the activities of “First Ladies,” here and abroad, have received analysis. See, e.g., Sara Krausert, Comment, From Baking Bread to Making Dough: Legal and Societal Restrictions on the Employment of First Ladies, 5 U. CHI. L. SCH. ROUNDTABLE 243 (1998) (discussing, inter alia, the service of attorney Hillary Rodham Clinton during Bill Clinton’s presidency); David Carr, Is Shriver Still Working for “Today”?, N.Y. TIMES, June 6, 2005, at C1 (discussing journalist Maria Shriver, “first lady of California”); Alan Cowell, British Press Scolds Mrs. Blair Over a Speech in the U.S., N.Y. TIMES, June 10, 2005, at A8 (discussing attorney Cherie Booth, wife of British Prime Minister Tony Blair). 5. Several high-profile judicial opinions and commentaries suggest that the debate focuses exclusively on whether the central purpose of marriage is sexual reproduction and childrearing. Compare Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 962 (Mass. 2003), with Hernandez v. Robles, 855 N.E.2d 1, 7–8 (N.Y. 2006), and Andersen v. King County, 138 P.3d 963, 969 (Wash. 2006). Cf. Lewis v. Harris, 908 A.2d 196 (N.J. 2006). 6. We find information about the legislators’ party affiliations and states relevant to our analysis. As a result, we have inserted these abbreviated indications parenthetically after the first reference in the text to a legislator by name. When a legislator’s name appears in a footnote before it appears in text, we have also included this parenthetical information in the footnote. 7. S. 1, 110th Cong. § 113(a), (b), (d) (2007). The measure includes an exception for spouses who worked as lobbyists for a year before the election or marriage. Id. § 113(c). 8. H.R. Res. 6, 110th Cong. (2007); see infra notes 31–32 and accompanying text (discussing H. Res. 6, 110th Cong. (2007)). These changes were adopted as rules for the House, not as legislation, so they do not need to pass the Senate nor get the President’s signature. https://openscholarship.wustl.edu/law_journal_law_policy/vol24/iss1/9 p 207 Appleton Rimmer book pages.doc 10/2/2007 2007] Power Couples 209 senators who supported the measure have expressed doubts about its ability to survive in the Senate-House Conference Committee.10 Whatever the ultimate fate of the Senate’s response to spousal lobbying, the measure provides a revealing lens through which to examine a number of unsettled issues. For example, one set of issues is political and practical. Prior to the Senate’s unexpected action, observers had predicted that meaningful reform would never reach these power couples, regardless of the party controlling Congress, because of the incidence of such marriages among Democrats and Republicans alike.11 What prompted the Senate to defy such predictions and to take the particular approach that it adopted, passing a significant ethics reform bill with numerous amendments that escaped individual votes?12 In addition, the Senate’s regulation of power couples—as part of a more sweeping response to entanglements between Congress and K Street13—invites reflection on the practice of “business as usual” in 9. H.R. Res. 2316, 110th Cong. (2007); see infra notes 45–46, 205 and accompanying text (discussing this bill). 10. See Interview by Fox News with Senator David Vitter (Jan. 19, 2007) (Vitter’s expressions of doubt); see also Gail Russell Chaddock, After House’s “100-Hour” Rush, a Senate Slowdown, CHRISTIAN SCI. MONITOR, Jan. 22, 2007, http://www.csmonitor.com/2007/ 0122/p02s01-uspo.html (quoting skepticism about enactment of such “strengthening” amendments by Senator Tom Coburn (R-OK), who voted against the bill). 11. See, e.g., David D. Kirkpatrick, Democrats Split on How Far to Go with Ethics Law, N.Y. TIMES, Nov. 19, 2006, § 1, at 1; John Solomon, Lawmakers’ Lobbying Spouses Avoid Hill Reforms, WASH. POST, Jan. 17, 2007, at A1; see also infra notes 50–60; cf. Will Sullivan, Much Easier Said Than Done, U.S. NEWS & WORLD REP., June 4, 2007, at 22 (reporting difficulties encountered by ethics reform, despite Democrats’ pledge). 12. The Senate barely debated Senator Vitter’s various efforts to stop spousal lobbying. See 153 CONG. REC. S742 (daily ed. Jan. 18, 2007); 153 CONG. REC. S637–41 (daily ed. Jan. 17, 2007); 153 CONG. REC. S491–92 (daily ed. Jan. 12, 2007); 153 CONG. REC. S322–23 (daily ed. Jan. 10, 2007). Further, no committee considered the amendment, it had no hearing, and the vote occurred only after the amendment, along with several others, was incorporated into the bill by unanimous consent. In addition, members of both the Democratic and Republican leadership expressed opposition to Vitter’s efforts, although they voted for the bill. See Solomon, supra note 11 (noting opposition of Majority Leader Senator Harry Reid (D-NV)); Chaddock, supra note 10 (noting concerns of Minority Whip Senator Trent Lott (R-MS)); see also Fredreka Schouten, Senate Democrats Fight Proposal to Ban Relatives Lobbying; Some Back It Only if Family Members Are Grandfathered, USA TODAY, Jan.
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